Techdirt points to a report that Facebook currently hosts 4% of every photograph ever taken in history. Whether that’s an accurate number or not, the social media giant does host a huge amount of photos on its servers. Masnick uses this story to question copyright:

What is the real purpose of copyright? Is it only to incentivize professional content creation, or to incentivize content creation overall? Given the stated purpose is to “promote the progress,” and to provide the public with more content, I would argue the goal is to promote more overall content, and it seems that technology is doing a much better job of that than copyright.

There’s a couple of points here I want to talk about later, but first is this undercurrent that runs through many criticisms of copyright — that of valuing amateur content over professional content.

Yes, copyright incentivizes professional content creation — it is an economic incentive to invest money in the production of creative output. There is a moral rights aspect to copyright — explicit in many civil law nations, implicit in many common law nations — but the incentive aspect of copyright is primarily economic.

Critics of copyright law occassionally advance arguments attacking the incentive given by copyright as unnecessary or outdated. This one in particular goes something like this: we have no need for copyright anymore because amateur creators don’t need copyright’s incentive to create and amateur creativity is better than professional creativity.

This notion isn’t unique to Masnick. Sci-fi writer Cory Doctorow shares this view. In the Guardian last November, he writes, “I mean, I love sitting in an air-conditioned cave watching Bruce Willis beat up a fighter jet with his bare hands as much as the next guy, but if I have to choose between that and all of YouTube, well, sorry Bruce.”

Swedish politician Rick Falkvinge is even more blunt, who, though he doesn’t get around to defining what he means by “new” types of culture, can’t wait for “old” types of culture to die out:

I’m going go out on a limb here and say, that even if it is true that movies can’t be made the same way with the Internet and our civil liberties both in existence, then maybe it’s just the natural progression of culture.

[…] After all, we have previously had operettes, ballets, and concerts as the high points of culture in the past. Even radio theaters (and famous ones). Nobody is particularly concerned that those expressions have had their peak and that society has moved on to new expressions of culture. There is no inherent value in writing today’s forms of culture into law and preventing the changes we’ve always had.

You’ll even find such ideas coming from more scholarly sources. The Social Science Research Council’s Media Piracy in Emerging Economies report adopts this idea and wraps it up in more academic language:

[W]e take seriously the possibility that the consumer surplus from piracy might be more productive, socially valuable, and/or job creating than additional investment in the software and media sectors. We think this likelihood increases in markets for entertainment goods, which contribute to growth but add little to productivity.

Promoting the Progress

“To promote the progress of useful arts, is the interest and policy of every enlightened government.” 1Grant v. Raymond, 31 US 218, 241 (1832).

In the US, the end goal of copyright law is promoting the progress of the useful arts and sciences. A private right is secured as an incentive for creating and disseminating works for the public benefit.

Usually when we talk about “amateur creativity” and copyright, we’re talking about cultural works that are made for many of the same reasons as professional works but without the commercial aspect — videos, music, and writing created by hobbyists or striving professionals. But some of those making the argument that amateur creativity makes copyright obsolete sweep in not only this type of creativity but all noncommercial creative acts.

Snapshots, home videos, and status updates are great ways to communicate and express ourselves, but these can hardly be considered contributing to the promotion of the progress of the useful arts and sciences. Where is the public benefit in a stranger’s vacation pics? (Never mind that, unless you’re friends with all these people, you likely can’t see most of them.)

I wonder sometimes about those who don’t see the value of art and entertainment made by someone who got paid for it. It’s stunning that they can’t see the value of these novels, or these films, or these albums, or these photographs. 2I chose these lists only as representative examples of works held in high regard. Obviously there are problems with ‘best of’ lists of this sort. To dismiss these works and countless others like them as mere “entertainment” that is “unproductive” is an incredibly narrow viewpoint.

What’s equally stunning is the view that the measure of progress when it comes to copyright law should be based solely on numbers — quantity over quality. Ten photos are better than one, no matter what.

I agree that the copyright law should encourage widespread dissemination of works of the mind. But it seems to me that, in the long pull, it is more important for a particular generation to produce a handful of great creative works than to shower its schoolchildren with unauthorized photocopies or to hold the cost of a jukebox play down to a dime, if that is what it is these days.

Copyright protection

But suppose we ignore all this and decide to weaken copyright protection since the incentive is not needed anymore — problems would still remain. While the type of amateur creativity discussed above doesn’t rely on copyright’s incentive, it still benefits from the protection copyright law affords. A lot of attention is focused on end-user piracy of works from larger entities, but larger entities can infringe on individuals’ works.

Without copyright protection, companies would have free rein to behave like this. There’s nothing magical about copyright protection that makes it only limit the ability of consumers getting free movies.

Development of creative tools

Technology is suggested by Masnick as a better mechanism for promoting creativity than copyright protection. It’s true that people today have access to a vast array of cheap and portable tools to record and produce high quality audio and visual content (though no technology has yet made it easier to learn how to tell a story or convey an emotion). But this idea that technology has rendered copyright obsolete begs the question that a functioning market for professional content had nothing to do with the development of that technology.

Would there be technological tools that help amateurs create — especially free or cheap tools like GIMP, Blender, and Reaper — without their commercial precursors? These tools required investment and development, and that came largely from their use in professional contexts — decades of improvement fueled by a need for this technology and enabled by the money to meet that need. Invention, after all, doesn’t occur in a vaccuum.

No doubt this technology would have developed without copyright and a market for professionally produced content. But it certainly wouldn’t have developed at the rate it had — the tools that are available today would likely be decades away in such a world.

This ties into the benefit of copyright protection and its economic rationale. I think even copyright’s critics would agree that the ability to create movies and music from a home computer is a good thing. And, while I’m unaware of any research quantifying the effect of a market for professional content on the development of the technology used to create that content, I think it’s safe to say that it does have an effect, and probably not an insignificant one. We, as a society, generally want to encourage those things that bring about good results. Viewed this way, copyright makes sense from a public interest and economic perspective.

The “progress” of destroying markets

The biggest problem with attacking copyright by placing amateur content on a higher pedestal than professional content is that it sets up a false dichotomy. When did this become an either/or choice?

Amateur creativity thrives regardless of the copyright incentive. In fact, it’s an essential part of any culture with professional creators: almost without exception, every one of those professional creators has started out as an amateur. What Masnick, Doctorow, Falkvinge, and others are saying is that society would be better off with only amateur content rather than the combination of amateur and professional content.

15 Comments

I think something thing many ordinary people fail to realise is someone is always making money from the use of any form of artwork be it written word music images. Quick example The independent kids clothing company finds a facebook photo of a child just what they need to promote their company. In a world of no copyright they can take that image use it and the child as the face of their company with no comebacks. There are proud parents out there, no doubt reading this, thinking that would be fine by me My wonderful child for everyone to see. Now ask yourself what if that image of your child was
A- directly responsible for The independent kids clothing company going from a business of profit £100,000 a year to £1,000,000 a year in two years? Don’t think you and your child deserve a cut of that massive increase in profit?
Copyright protection gives YOUR images value, that’s why companies are charged to use them, that’s why models get paid, why photographers get paid why musicians and writers get paid copyright makes that possible.
B- used to promote a campaign to lower the legal age of alcohol consumption or smoking or legalise drugs? Copyright is one of the weapons in your arsenal that help protect you against your work being used in a way YOU dont approve of

This last week I’ve had a request for permission to use a photograph by a major publisher, which I said OK in exchange for £50 plus one copy of book, not heard back so I guess they were looking for a freebie. Plus one request for a photo use on a website that is selling kids clothes, games, and event tickets, it looks as if they want a freebie too.

Now I don’t do this professionally, and I make a good living from other activities, but I have friends that do make a living from stock photography, and I’m damned if they only ones that aren’t going to be making money out of this are the photogs.

According to this concept, any of the various movie/tv/book sequels (and remakes) of Sherlock Holmes are artistically-invalid since they were produced after the original books they’re based on became PD!
Should I tell Robert Downey Jr, Jude Law, Bernard Cumberbach,and Martin Freeman (among many other professionals) that you say they’re wasting their time, that whatever they do will not be considered “art”?

This article does not mention anything about remakes or sequels, whether based on works from the public domain or not. Rather, it talks about commercial versus personal production; Downey’s Sherlock would certainly fall under the realm of commercial production.

Second, though the article states that commercial works are often created for artistic reasons and amateur works for personal ones, no where does it say that these are defining characteristics. It just emphasizes the need to keep all forms of expression around instead of dismantling commercial production over some perceived triumph of amateur production.

Even with those clarifications, your argument still makes no sense. Copyright is not inhibiting people from making new Sherlock Holmes movies.

“Downey’s Sherlock would certainly fall under the realm of commercial production.”

Since Arthur Conan Doyle’s estate is getting nothing, how is that different from theft?
And, since it’s not being done by the original copyright holder, how is it different from a so-called “amateur” production?
Just spending more money on something doesn’t make it “professional”.
(And many “professionals” work on the “amateur” productions like Dr Horrible’s Sing-Along Blog, so it’s not the quality of the cast/crew.)

Also, where is there anything in the article about “dismantling” so-called “professional” productions?
People are free to do “professional” productions.
But since NO film in Hollywood actually shows a profit, according to Hollywod’s own accounting practices, why would they bother?
Hell, according to 20th Century Fox, the Star Wars series is still in the red!

Also, where is there anything in the article about “dismantling” so-called “professional” productions?

That’s what the entire article is about. The first 11 paragraphs (one-third of the whole post) are devoted to quoting numerous sources and their reasons why they feel professional content creation should die out in favor of amateur content creation.

Who has ever claimed that Dr. Horrible was an “amateur” production? Joss Whedon and Neil Patrick Harris are hardly what I’d call amateurs. And the show had a full cast and crew. It was funded with $200,000 of Whedon’s money. Not small change by any stretch, mind you. Good thing his most successful commercial work, Buffy, is protected by copyright and seems to be paying handsomely. I’d be willing to bet that without the money he made/residuals received as a professional, he would not have been able to fund such a production.

Since Arthur Conan Doyle’s estate is getting nothing, how is that different from theft?

You’re arguing an angle that no one has brought up. Who are you asking? If you just want to talk about the public domain (something I think most people here support), then why don’t you go ahead and explain how it is different from theft rather than charging at windmills?

Just spending more money on something doesn’t make it “professional”.

Granted, but what’s your point? A woman who spends a lot of money on clothes is obviously not a professional designer or personal stylist by default. Nor does she automatically become a professional “clothes-wearer” or model. Looking at it from an IRS-type perspective, spending money on a craft is meaningless, *earning* money from your work makes you a professional. Which is a workable definition that I’m fine with. I may not be a professional artist, but I’m still an artist nonetheless.

When sites like TD preach to the choir of amateurs, what they’re actually supporting is a vision of the world where no one gets paid directly for their creations and just lets them fly on the internet free of constraints of authorship, creating a chaotic mess of a haystack hiding the single needle you seek at any given point, therefore “technovators” can design sites/apps/programs that wring order from that chaos; the chaos they’re currently trying to create. Funny how that seems to match up *exactly* with the vision of the world that Google has…

“Who has ever claimed that Dr. Horrible was an “amateur” production? Joss Whedon and Neil Patrick Harris are hardly what I’d call amateurs. And the show had a full cast and crew. It was funded with $200,000 of Whedon’s money. Not small change by any stretch, mind you.”

And a number of so-called “amateur” productions cost even more.
So?Dr Horrible was conceived and done as a personal project, to be downloaded for free off the Internet.
And, if you remember the definition of “amateur”, it’s “for the love of the subject”.None of the cast and crew took any upfront, except for expenses.
The money went for equipment and studio rental.
Any money made since then has been incidental, not planned.
The very definition of “amateur”

What freeloaders also fail to realize is that a good chunk of the amateur content shared on youtube, flickr etc was made with professional aspirations. Take away that carrot and what are you left with?

Cat videos.

Technology is indeed a better mechanism for promoting cat video creativity. You’ll get no argument from me there. But Copyright remains the best mechanism for promoting quality professional content (AKA the kind of creativity filling up multi-terabyte hard drives and torrent top ten lists the world over).

Doctorow and all the other snake oil internet charlatans might be happy with infinite cat videos on youtube but I don’t think most people would agree with them.

The “amateur content will suffice” is yet another freetard trope that arguably isn’t even worth retorting. It fails at its very premise. It’s not an either-or question. And the public good would obviously be harmed without professional content made by the artists and craftsmen who can afford to devote themselves entirely to their chosen creative pursuit.

As a composer, I place great value on copyright laws, as do those who publish my work. Aside
from the valid – and moral – financial interests protected by copyright, how are creative works of any kind protected from misuse (i.e., plagiarism, undesriable satirical use, use to bolster a cause the writer or publisher cannot endorse, outright theft [ false claim of authorship]of material, etc.) without copyright protection?

The anti-copyright propagandists really need to learn some economics 101, and some old-fashioned
“Thou shallt not steal.”

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.